Presentation on theme: "Join the Conversation on Twitter #KidsWhoCrossed."— Presentation transcript:
Join the Conversation on Twitter #KidsWhoCrossed
Thank you to our co-sponsors. Join the Conversation on Twitter #KidsWhoCrossed
Thank you to our Planning Committee Ashley Gagnon Steininger Benny Agosto Blenda Ruiz Bob Snyder Briana Stone Bridgette Smith-Lawson C.J. Broussard-White Charles Foster Dan-Phi Nguyen Elaine Stolte Fernando Colon-Navarro Francie Aguirre Jacob Monty John Lasseigne John Odam Judge Frank Rynd Judge Michael Schneider Kippy Caraway Kristen Lee Maurice Hew Neil Kelly Pam Parker R.J. Hazeltine-Shedd Steven Dieu Sue Davis Terence O'Rourke Tiffany Reedy Tina Amberboy Trish McAllister Vidal Martinez Wafa Abdin William Frazier Join the Conversation on Twitter #KidsWhoCrossed
Welcome Sheriff Adrian Garcia Senator Sylvia Garcia Rep. Ana Hernandez Rep. Mary Ann Perez Rep. Alma Allen Hon. Eva Guzman Hon. Michael Massengale Hon. Esmeralda Pena Garcia Hon. David Fraga Hon. Armando Rodriguez Join the Conversation on Twitter #KidsWhoCrossed
Vince Ryan Harris County Attorney Join the Conversation on Twitter #KidsWhoCrossed
Honorable Eva Guzman Associate Justice Supreme Court of Texas Join the Conversation on Twitter #KidsWhoCrossed
Honorable Nathan Hecht Chief Justice Supreme Court of Texas Join the Conversation on Twitter #KidsWhoCrossed
Trey Apffel Texas State Bar President Join the Conversation on Twitter #KidsWhoCrossed
Benny Agosto Vice President Houston Bar Association; Hispanic Issues Section Chair, State Bar of Texas Join the Conversation on Twitter #KidsWhoCrossed
Dr. Adriana Tamez Trustee Houston Community College Join the Conversation on Twitter #KidsWhoCrossed
Raul Peimbert Univision TV Join the Conversation on Twitter #KidsWhoCrossed
Charles C. Foster FosterQuan, LLP Join the Conversation on Twitter #KidsWhoCrossed
Moderator: Francie Aguirre Commissioner John Specia, Jr. C.J. Broussard-White Sheriff Adrian Garcia Join the Conversation on Twitter #KidsWhoCrossed
Naomi Bang South Texas College of Law Join the Conversation on Twitter #KidsWhoCrossed
Federal law preventing human trafficking ◦ Section 235 (2008) – designed to protect children and return them Substantive changes to immigration legal relief for UACs. More child-sensitive procedures and protections for UACs in custody and detention. (*Flores Agreement of 1997, DHS Security Act of 2002)
NO lawful immigration status in US UNDER 18 years of age NO parent or legal guardian in the US or NO parent or legal guardian in the US available to provide care
Non-Contiguous countries (Honduras, El Salvador, Guatemala) (20% to 75+%) ◦ Section 235 (b) Contiguous countries: (Mexico and Canada) Section 235 (a) Within 48 hours, determine 1.victim of a severe form of trafficking 2. possible claim to asylum 3. independent decision to voluntarily return
CBP - Customs and Border Protection apprehends, processes, and detains UACs at border. ICE - Immigration and Customs Enforcement transports to HHS-ORR custody. HHS - Department of Health and Human Services/Office of Refugee Resettlement - care/custody UACs screening, best interests USCIS – US Citizenship and Immigration Services adjudicates UAC asylum applications. EOIR-DOJ - Executive Office of Immigration Review does removal proceedings. Immigration courts.
UAC ASYLUM – refugee/fear/persecution T visa – visa for victims of severe trafficking SIJS – special immigrant juveniles – abused, neglected or abandoned, reunification not viable with family
Exempt from various filing deadlines and barriers (e.g. one-year filing deadline, safe third country limitation) Allowed to proceed with Asylum Office (USCIS), and not the judge, EVEN if already in removal Expanded various definitions under Special Immigrant Juvenile Status to allow more relief Pardoned from disqualifying factors at green card level (waivers for ewi, fraud)
Transfer to the care/custody of DHHS/ORR, 235(b) from DOJ/DHS Voluntary departure at govt. expense, 235(a)(5)(D) “… the Secretary of Health and Human Services is obliged to provide these children access to counsel, including pro bono counsel, to provide free legal services to these children. TVPRA § 235(a)(5)(E)(iii
Asylum ◦ Victims of persecution ◦ Gang/family violence SIJ (abused, abandoned, neglected) T visa (trafficking victims)
Legal immigration status Employment authorization Legal Reprieve – from pending deportation. Benefits for derivatives ◦ Parents, siblings
Client Backgrounds/Framework: Client’s misinformation Cultural differences re honesty Language barriers – no English Lawyer’s emotions will be tested: Young or NEW practitioners Consequences are high -- life or death
(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement.. … (3) offer evidence that the lawyer knows to be false. *USCIS government agency
ABA Rule 8.04(a)(3) – A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.fraud Good intentions are not a defense.
Use good translators/assistants ◦ Objective view of case/client Corroborated documents ◦ Police reports, hospital records Review and review sworn affidavits Work closely with Mentor/Clinic WE WILL HELP YOU!
August 29, 2014 8:30 to 12:30 (TBD) Nuts and Bolts CLE @ South Texas College of Law 4 hours CLE credit Email: email@example.com@stcl.edu
Professor Geoff Hoffman, UH Law Center Professor Fernando Colon, Texas Southern University, Thurgood Marshall School of Law Anne B. Chandler, Houston Director, Tahirih Justice Center Join the Conversation on Twitter #KidsWhoCrossed
ASYLUM CLAIMS FOR UACs (unaccompanied Alien Children) By Geoffrey Hoffman, Director University of Houston Law CenterImmigration Clinic, Clinical Associate July 31, 2014 Professor University of Houston Law Center Immigration Clinic
U.S. Definition of “refugee” To qualify for asylum here in the U.S. must meet definition of “refugee”: under the INA (Immigration and Nationality Act) as follows: “any“anypersonwhoisoutside anycountryofsuchperson’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well- founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion....” 8 U.S.C. 1101(42)(a). University of Houston Law Center Immigration Clinic
Ethical Issues when dealing with UACs Ability to participate in interview/hearing: depends on age, health, development, cognitive processes, education, language ability, background Trauma dramatically affects development of child’s brain Trauma = chaotic social conditions, violence, lack of protection and caring by adults, nutritional deficits, physical and mental disabilities Capacity to consent Parents can sign forms if child under 14, 8 CFR 103.2(a)(2) Parents can be given notice, 8 CFR 236.3(f) Conflicts: are child’s and parents’ interests aligned? Children cannot present testimony with same level of precision as adults Source: AILA Colorado Representing UAC’s July 2014 powerpoint - AILA doc. No. 14072245. University of Houston Law Center Immigration Clinic
Child Sensitive Interviewing Techniques Shorter Meetings to hold attention span Show empathy, speak w/ facts Start with neutral topic, nonjudgmental Ask open-ended questions Avoid complex questions Use active reflective listening Continually check-in Source: AILA Colorado Representing UAC’s July 2014 powerpoint - AILA doc. No. 14072245. University of Houston Law Center Immigration Clinic
WHAT IS “PERSECUTION”? First step is to determine whether persecution exists. What is it? When does it occur? “The infliction of harm or suffering by a government or persons a government is unwilling or unable to control.” Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996) A subjective punitive or malignant intent is not required but the definition does not encompass: – Treatment that our society may consider unfair, unjust or even unlawful or unconstitutional – Harms solely relating to or arising out of civil strife University of Houston Law Center Immigration Clinic
The “nexus” requirement Remember the applicant must show “nexus” (a sufficient connection) between past persecution or future persecution and at least one of the five grounds: 1. 2. 3. 4. Race Religion Nationality (this includes ethnicity, like “Quiche”) Membership in a particular social group (“PSG”) (for children’s case this ground will be most important). 5. Political Opinion University of Houston Law Center Immigration Clinic
UAC PSG Claims With respect to UAC cases,note there may be multiple PSGs into which a particular child may fit, 2 frequent formulations: GANG-BASED particular social group DOMESTIC VIOLENCE particularsocialgroup Theseareareby no means easy to prove. University of Houston Law Center Immigration Clinic
Important Gang Cases Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008) (rejected PSG based on Salvadoran youths who resisted gang recruitment or their family) Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2009)(rejected PSG young persons who resist gang membership or perceived to be affiliated with gangs; ruled that the group would lack social visibility), 26 I. & N. Dec. 208 (2014) (replaced “social Matter of W–G–R– visibility” req’t with “socially distinct” ; BIA rejected social group of “former members of the Mara 18 gang in El Salvador who have renounced their gang membership” as not “socially distinct” due to a lack of evidence introduced at the proceedings; remand ordered) Matter of M–E–V–G–, 26 I. & N. Dec. 227 (2014) (the BIA declined to make a ruling on whether Honduran youths who were actively recruited by gangs but who refused to join constituted a particular social group because further fact-finding was required; remand). University of Houston Law Center Immigration Clinic
So What Might Constitute Viable PSG Claims for UAC – Gang cases? The starting point for any PSG claim is Matter of Acosta 19 I&N Dec. 211 (BIA 1995) (The Board required that PSG to be cognizablemust relate to “immutable” characteristics). or“fundamental” University of Houston Law Center Immigration Clinic
Acosta The touchstone case for PSG is Matter of Acosta 19 I&N Dec. 211 (BIA 1995) The Board required that PSG to be cognizable must relate to “immutable” or “fundamental” characteristics: “a common, immutable characteristic… that the members… either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” In Acosta, the PSG offered by respondent was rejected -- “El Salvadoran taxi drivers who refused to collaborate with guerillas” was found not to be “immutable” nor sufficiently fundamental to warrant relief. University of Houston Law Center Immigration Clinic
Gang-based asylum claims To meet the “social distinction” and “particularity” requirements now required under the latest case law, consider other PSGs which meet the immutable characteristic required by Acosta but are also distinct, e.g.: – Those who have been witness to crime or reported it to local authorities--prosecutorial witness relating to gang violence Those who because of their young age would be targeted by gangs (age as “immutable characteristic”) (“Street children”) Those who have some other special characteristic which makes them especially vulnerable, such as “sexual identity” Those whose religion, ethnicity, cultural or linguistic identity make them part of a particular social group (e.g. Quiche) – – – University of Houston Law Center Immigration Clinic
The evolution of PSG law Applications of Matter of Acosta Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990) – (homosexual Cubans) Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996) – (“young women who are members of the Tchamba-Kunsuntu Tribe of northern Togo who have not been subjected to female genital mutilation, as practiced by that tribe, and who oppose the practice”) Tchoukhrova v. Gonzales, 404 F.3d 1181 (9th Cir. 2005)(vacated on other grounds, 549 U.S. 801 (2006). – The Board and Ninth Circuit both acknowledged that “disabled children in Russia” constitute a PSG as they have both common immutable characteristics and shared experiences. The Asylum Officer Basic Training Course, Asylum Eligibility Part III: Nexus and the Five Protected Characteristics 53 (Mar. 21, 2009) states that this understanding of PSG for disabled children is in line with agency interpretation. University of Houston Law Center Immigration Clinic
The evolution of PSG law U.N. definition of particular social group: “a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.” UNHCR, Guidelines on International Protection: “Membership of a particular social group within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, U.N. Doc. HCR/GIP/02/02 ¶¶11-12 (May 7, 2002) University of Houston Law Center Immigration Clinic
The evolution of PSG law “Social visibility” and “particularity” become requirements for all PSGs Matter of S-E-G-, 24 I&N Dec. 579 (2008) (“Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership in the gang based on their own personal, moral, and religious opposition to the gang’s values and activities” and “the family members of such Salvadoran youth”) Matter of E-A-G-, 24 I&N Dec. 591 (2008) (Former gang members) University of Houston Law Center Immigration Clinic
Challenges to S-E-G-/E-A-G- A developing circuit split: Six circuit courts have upheld S-E-G- against direct challenges: –––––––––– Ramos-Lopez v. Holder, 563 F.3d 855, 858-62 (9th Cir. 2009) Mendez-Barrera v. Holder, 602 F.3d 21, 26 (1st Cir. 2010) Lizama v. Holder, 629 F.3d 440, 447 (4th Cir. 2011) Fuentes-Hernandez v. Holder, 411 F. App'x 438, 438-39 (2d Cir. 2011) Gaitan v. Holder, 671 F.3d 678 (8th Cir. 2012)(finding that young males from El Salvador who flee to avoid gang violence fail to qualify as a PSG) Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012)(upholding social visibility and particularity requirements and finding that males aged 8 to 15 in Salvador who have been recruited by Mara 18 but refused to join due to opposition fail to qualify as a PSG) – University of Houston Law Center Immigration Clinic
Challenges to S-E-G-/E-A-G- Cont. Three circuit courts have rejected S-E-G- and/or E-A-G- – Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009); Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009) Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010) (relying primarily on Acosta’s definition of PSG and finding that a former gang member is part of a PSG) Valdiviezo-Galdamez v. Holder, 663 F.3d 582, 603-09 (3d – Cir.2011)2011) – Note: The Ninth Circuit in a recent en banc published decision in Henriquez-Rivas v. Holder held that without reaching the validity of “social visibility” and “particularity” that both were met for an El Salvadorian girl who testified against gang members for killing her father. » Redefining social visibility to only be “understood by others” to be a social group and not on-sight visibility. University of Houston Law Center Immigration Clinic
Even within S-E-G-, Age is an “Immutable Characteristic” The Board in Matter of S-E-G- has reasoned that age is outside an asylum applicant’s control making it an “immutable characteristic” for purposes of the Acosta test. Adequate mechanisms within asylum law can deal with “aging out” such as a finding of a “fundamental change of circumstances” as found by the Eighth Circuit in Ixtlilco- Morales v. Keisler, 507 F 3d 651, 654-55 (8th Cir. 2007). Lastly, a young person should not be precluded from a PSG for simply passing the age of 18 since being young and vulnerable often identifies a person for being persecuted. See generally Michelle Foster, Intl. Refugee Law & Socio- Economic Rights: Refuge from Deprivation (2007). University of Houston Law Center Immigration Clinic
Beyond S-E-G- “Street Children” – The Board has found, in an 2001 unpublished decision, that “abandoned street children in Nicaragua” amounted to a PSG.In that case, Matter of B-F-O-, killed by guerillas was continuously the boy had seen his parents and left on the streets where he vulnerable to violence & abuse. The Board also found it was on account of an imputed political opinion and in cases of severe harm humanitarian asylum should be considered as well. University of Houston Law Center Immigration Clinic
Formulating PSG’s for Gang-Based Asylum Claims of Children Age is an immutable characteristic, but can also be combined with other factors to makethePSG more socially visible/distinct suchas: –––––––––––––– Disabilities Being “abandoned street children” Their geographical location Values/political beliefs Being prosecutorial witnesses Forced recruitment And others University of Houston Law Center Immigration Clinic
Beyond S-E-G- Alternative social group formulations: Family – Crespin Valladares v. Holder, 632 F. 3d 117 (4th Cir. 2011) (stating that prosecutorial witnesses as well as their family members who suffer persecution on account of family ties constitutes a PSG) – Gebremichael v. INS, 10 F.3d 28, 36 (1 st Cir. 1993) (“There can, in fact, be no plainer example of a social croup based on common identifiable and immutable characteristics than that of the nuclear family.”) – Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9 th Cir. 1986) (“Perhaps a prototypical example of a particular social group would consist of the immediate members of a certain family, the family being a focus of fundamental affiliation concerns and common interests for most people.”) – Since S-E-G-, some IJs have granted asylum to applicants fleeing gang recruitment/retribution based on membership in the particular social group of their own nuclear family. Links to these decisions are available at the Immigrant Law Center of Minnesota’s gang-asylum web page. University of Houston Law Center Immigration Clinic
OTHER ASYLUM CLAIMS BESIDES GANG CASES FOR UACs Alternative social group formulations (continued): Gender alone: – (9 th Perdomo v. Holder, 611 F.3d 662Cir. 2010)(Guatemalan women) Gender/domestic violence: (may apply to abused child not just spouse) – Matter of R-A-, 22 I&N Dec. 906 (A.G.2001; BIA 1999) “women in domestic relationships who are unable to leave” “women who are viewed as property by virtue of their positions within a domestic relationship.” Religion – Occasionally as a basis for recruitment; more often persecution due to church- based, anti-gang efforts University of Houston Law Center Immigration Clinic
Beyond S-E-G- Pursue alternatives to social group: – Political opinion claims remain viable in gang-related cases if sufficient direct or circumstantial evidence of the gang’s political motives is present to satisfy INS v. Elias-Zacarias, 502 U.S. 478 (1992), and INA Sec. 208(b)(1)(B)(i). (8 th Marroquin-Ochoma v. Holder, 574 F.3d 574, 578Cir. 2009) (“Opposition to a gang such as Mara Salvatrucha may have a political dimension”). (7 th See Martinez-Buendia v. Holder, 2010 U.S. App. LEXIS 16479 Cir. Aug. 10, 2010) (reversing BIA’s application of S-E-G- to deny political opinion claim where Board did not analyze with sufficient particularity those facts in the record that demonstrated political motives of persecutors, the FARC rebels of Colombia). University of Houston Law Center Immigration Clinic
Don’t forget: ASYLUM LAW IS SPECIFIC! Many practitioners try to use canned templates – don’t cut corners. CASE briefs or Be aware that the BIA has not foreclosed gang-based cases, but just emphasized further fact finding and proving up of cases is required Therefore, you will need to invest a lot of time to gather the evidence, help client with affidavits, present the record and get country condition and/or psych. experts! University of Houston Law Center Immigration Clinic
RESOURCES The Law of Asylum by Deborah E. Anker AILA's Asylum Primer, 6th ed. by Regina Germain Immigrant Law Center of Minnesota (ILCM.ORG): – Matter of S-E-G/ gang asylum web page – Technical assistance: firstname.lastname@example.org@ilcm.org Center for Gender and Refuge Studies (CGRS) ht p://cgrs.uchastings.edu/ Gender-based asylum resources and technical assistance University of Houston Law Center Immigration Clinic
Questions & Answers Contact Professor Geoffrey Hoffman email@example.com University of Houston Law Center To schedule an intake for a UAC contact the intake desk at our Immigration Clinic: 713 743 2094 University of Houston Law Center Immigration Clinic
The Rights of the Unaccompanied Alien Children and the Duties of Federal, State, and Local Governments 3:00 P.M. T & U Non-Immigrant Visas Kristin Zipple-Shedd, Supervising Attorney, Catholic Charities Maurice Hew, Clinic Director and Professor of Law, Thurgood Marshall School of Law Michelle Permenter, Director of Victim Witness Unit, Harris Co. District Attorney’s Office Houston Community College 5601 West Loop Houston Texas July 31, 2o14
Catholic Charities Cabrini Center for Immigrant Legal Assistance Kristin Zipple-Shedd Human Trafficking and the T Visa
Forms of Human Trafficking 1. Forced commercial sexual exploitation: “The recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act, in which a commercial sex act is induced by force, fraud, or coercion, or in which the person forced to perform such an act is under the age of 18 years.” 2. Forced labor: “The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage or slavery.” 22 U.S.C. § 7102(8)
Elements of Human Trafficking Force Physical beatings Sexual Violence (rape) Drug/Alcohol abuse Withholding of documents Deprivation (lack of food/water) Physical restraint Confinement/Isolation Fraud False documents False offers of employment (American dream enticement) Deception Coercion Debt bondage (repayment of expenses) Psychological Abuse Control through threats of violence to victim or victim’s family reporting to immigration officials
Two UAC HT Survivors “Juan” left his home in Honduras due to extreme poverty at the age of 7 and lived on the streets until he came to the U.S. at age 13. After entering the U.S., Juan walked from Laredo to El Paso where he met Mr. B, who offered him food and shelter. He worked on the ranch and in the family business from 5am until 6pm seven days a week, lived in unsanitary conditions without enough food or water, and feared for his life. “Sandra” came to the U.S. with her boyfriend, who promised her work caring for his aunt’s children. However, after they arrived in Houston, he left her with his aunt, who forced her to work at a cantina to pay off a debt she didn’t know she had accrued until after she arrived. Sandra endured physical, sexual, verbal, and emotional abuse as her perpetrators forced her to work 12 hours a day doing things at the cantina that continue to haunt her.
Purpose of T (and U Visas) Humanitarian/Protection of Victims Public Interest Encourages victims to cooperate with law enforcement and facilitates trust between police and immigrant community Holds perpetrators accountable
Immigration Remedies for HT Victim: Continued Presence Temporary authorized stay in the U.S. One year, can be renewed Valid only as long as the government deems it necessary Employment authorization Not a path to permanent status 22 U.S.C. § 7105(c)(3)
Immigration Remedies: T Visa Lawful T visa status for 4 years, INA § 214(o)(7) If law enforcement certifies that victim’s presence is necessary, status may be extended Employment Authorization, 8 C.F.R. § 214.11(l)(4) Same benefits to derivative beneficiaries Possibility of adjustment to Legal Permanent Residency
Immigration Remedies: T Visa Requirements 1. Victim of severe form of trafficking in persons, 2. Physically present in the United States on account of human trafficking or the investigation of human trafficking, 3. Suffer extreme hardship involving unusual and severe harm if removed from the United States, and 4. Cooperate with Law Enforcement in the investigation or prosecution of trafficking, unless victim is under 18 or waiver
Element 1: Victim of Severe Form of Trafficking Involuntary Servitude. 22 U.S.C. §7102(5) (2008); see 18 U.S.C. §1584. Peonage. See 18 U.S.C. §1581. Debt Bondage. 22 U.S.C. §7102(4). Slavery. See 18 U.S.C. §1583. Forced Labor. See 18 U.S.C. §1589. Forced Commercial Sex Act. 22 U.S.C. §7102(8)(a).
Element 2: Physically Present on Account of Trafficking Present because s/he was trafficked, Present because s/he recently escaped from a trafficking scheme, or Present in the US as direct result of past trafficking Even one trip back to home country can eliminate T ‐ visa option. 8 U.S.C. §1101(a)(15)(T)(i)(I) (2008); 8 C.F.R. §214.11(g) (2008).I
Element Three: Extreme Hardship Age and Personal Circumstances Physical or Mental Illness Trafficking ‐ Related Physical or Psychological Consequences Loss of Access to Courts Laws, Social Practices, or Customs of Home Country Risk to Physical Safety or of Being Re-victimized 8 C.F.R. §214.11(i)
Element Four: Cooperation with Law Enforcement I-914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons (uscis.gov) Victimization Investigation and/or Prosecution Victim’s Cooperation with Law Enforcement Unlike the U Visa, certification is not required (although good as it is primary evidence of cooperation) Secondary Evidence Victim Declaration Communication with Law Enforcement Copies of Correspondence Affidavit from Liaison
T (and U) Visa Derivative Family Members Two main rules: Must be a qualifying family member Must be admissible, and not culpable in the qualifying crime Victim over 21 Spouse, children (under 21 and unmarried) Victim under 21 Spouse, children (under 21 and unmarried), unmarried siblings under 18, parents The Applicant may apply for Derivatives who live in the US or abroad. If the derivative lives abroad, he/she will need to go through consular processing in order to enter the US.
Trafficking Information and Referral Hotline 1-888-3737-888
Contact Information Kristin Zipple-Shedd Supervising Attorney, Crime Victims Program firstname.lastname@example.org 713-875-6550
U Visa Summary Requirements 8 U.S.C. § 1101(a)(15(U) ; INA § 101(a)(15)(U), 8 CFR §214.14 Victim of a statutorily-listed crime in violation of U.S. law or in US territories or possessions Rape, torture, trafficking, incest, dom. violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, FGM, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury… …or attempt, conspiracy, or solicitation to commit any of the above-mentioned crimes, or any similar activity in violation of federal, state or local criminal law INA §101(a)(15)(U)(iii) Helpfulness in a criminal investigation or prosecution. Substantial physical or mental abuse. Law enforcement certification of helpfulness – INA § 214(p)(1). Unlike the T, I 918 B certification form required for approval of U status.
CERTIFYING AGENCY A Federal, state, or local law enforcement agency, prosecutor, judge, or other authority responsible for the investigation or prosecution of a qualifying crime or criminal activity. 8 CFR §214.14 (a)(2) 6 month rule-the certification must be signed within the six months immediately preceding the filing. 8 CFR§214.14 (c)(2)(ii)
FAMILY MEMBERS 8 CFR § 214.14(a)(10) If victim 21 years of age or older- Spouse and or children If victim 21 years of age or younger Spouse, children, parents, unmarried siblings under the age of 18
INADMISSIBILITY BENEFITS Under INA § 212(d)(14) all grounds of inadmissibility may be waived for U nonimmigrant applicants EXCEPT INA § 212(a)(3)(E) Nazi persecution, genocide, torture, extrajudicial killing Waiver standard Discretionary If in the public or national interest
U VISA Benefits ADMINISTRATIVE Lawful immigration status for a four-year duration unless more time required for investigation or prosecution - INA § 214(p)(6) Can file an I-539 to extend status Derivative family member cannot be issued duration longer than principal U visa is a temporary visa. Can seek permanent residency status, after the U. Employment authorization. Continued Presence
U VISA BENEFITS Removal Proceedings Administrative stay of removal order INA § 237(d) Administrative closure or joint motion to terminate removal proceedings for one who has established a prima facie case for a T or a U 8 CFR § 214.14(c)(ii) Termination of removal proceedings for one whose T or U is approved. Criminal Proceedings Termination of criminal proceedings
Contact Information Maurice Hew, Jr.* Clinic Director and Associate Professor of Law Thurgood Marshall School of Law 3100 Cleburne Street Houston, TX 77004 713.313.7275(tel) 713.313.1191(fax) *Board Certified, Immigration and Nationality Law, Texas Board of Legal Specialization
Harris County District Attorney’s Office Victim Witness Division Michelle Permenter T and U Non-Immigrant Visas Working with the Immigrant Community
Why Provide a Certification? Identify and prosecute criminals Encourage reporting of crime Overcome obstacles to victim cooperation Provide humanitarian relief
What Obstacles are faced in Obtaining the Law Enforcement Certification? Agency does not have certification policy Misunderstandings and misperceptions certifying agencies have about the process
Does the Harris County District Attorney’s Office have a Policy? Will review only cases where charges are filed and are pending or disposed cases up to three years post disposition date.
Contact Information Michelle Permenter, Director Victim Witness Division Harris County District Attorney’s Office email@example.com Work (713) 755-6655 Fax (713) 755-0452 firstname.lastname@example.org
Dalia Castillo-Granados Staff Attorney Kids In Need of Defense (KIND) Join the Conversation on Twitter #KidsWhoCrossed
S PECIAL I MMIGRANT J UVENILE S TATUS Presented by: Dalia Castillo-Granados
Overview Special Immigrant Juvenile Status (SIJS) History Federal Statute and Regulations Scenarios Three Step Process Ethical Considerations
History of SIJS 1990 SIJS created to address children in state foster care 1994 Added “or…legally committed to, or placed under the custody of, an agency or department of a State” 1998 Added requirement that state court must find “abuse, neglect, or abandonment” 2008 Expanded relief to children who can show “reunification with 1 or both of the immigrant’s parents is not viable”
SIJS: Eligibility Criteria Unmarried & under age 21 Declared dependent on a juvenile court or legally committed to, or placed under the custody, of an individual or entity appointed by the state juvenile court Required Findings Not viable to reunify with one or both parents due to abuse, abandonment, neglect, or similar basis found under state law Not in the child’s best interest to be returned to his/her country of origin
Federal Statute INA §101(a)(27), 8 U.S.C. §1101(a)(27)(J) (J) an immigrant who is present in the United States— (i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; (ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence
Federal Regulations 8 C.F.R. §204.11 Promulgated in 1993 DHS proposed new regulations in September 2011 but the rules have yet to be finalized Provisions that are still applicable Definition of “juvenile court”- a court located in the US having jurisdiction under State law to make judicial determinations about the custody and care of juveniles. Eligibility requirements- under 21 years of age, unmarried, etc.
SIJS: Three Steps State court order Petition for SIJ status Lawful permanent residence
Step 1: State Court Order Many types of proceedings can be used as a vehicle to obtain the necessary state court order that include the requisite SIJS findings. Suit Affecting Parent Child Relationship (SAPCR) - proceeding to determine custody rights brought under Title 5 of the Texas Family Code. Goal of SAPCR = obtain order granting: Determine/clarify custody rights of the child’s parent or caregiver; and Make necessary findings to allow the child to apply for SIJS with the immigration authorities.
Dependent on the Court or Individual The state court must declare the child: Dependent on a juvenile court, or Child protection proceedings Delinquency proceedings Legally committed to or placed under the custody of an individual or entity appointed by a State or juvenile court Custody proceedings Guardianship proceedings
Reunification Not Viable The state court must make a finding that : Reunification with 1 or both of the child’s parents is not viable due to abuse, abandonment, neglect, or a similar basis found under State law. Look to the Texas Family Code for the definitions of abuse, neglect or abandonment.
Best Interest Not to Return The state court must also find that: It would not be in the child’s best interest to be returned to his country of nationality or country of last habitual residence. This is a best interest finding. The judge is not determining whether the child can remain in the U.S. The judge may consider: Country conditions of the child’s home country; Family members available to care for the child in the home county (or lack thereof) ; or Any other factors that may endanger or negatively impact the child’s life in the home country.
Step 2: Petition for SIJ Status Once the state court issues a final order, the child can petition for SIJ Status. The I-360 form is a petition the child files with USCIS for an immigrant visa. Requirements Under 21 Not married Valid state court order
Step 3: Lawful Permanent Residence Form I-485, Application to Register Permanent Residence or Adjust Status Child must be “admissible” to the U.S. Selected grounds inapplicable to SIJS kids – e.g., entry without inspection (EWI), public charge, working without authorization, etc. If approved, child will receive a Lawful Permanent Residence (“green card”)
SIJS Scenarios Jose is a 16-year-old boy from Honduras. Jose and his mother suffered terrible abuse at the hands of his father. His mother fled to the U.S. to escape the abuse and left Jose in care of his grandparents. Jose came to the U.S. to reunite with his mother and to get away from the continued harassment of his father. Tania is a 13-year-old girl from Guatemala who recently reunited with her aunt in the U.S. Her father was killed five years ago during a land dispute with their neighbors. Afterward, her mother turned to alcohol, and would go days without returning home. Tania had to beg on the street in order to buy food and was forced to abandon school after the 5 th grade.
Ethical Considerations In SIJS cases, who is the client? Adult caretaker in custody suit Child in removal proceedings For child clients, Childs wishes (stated/expressed interest) vs. attorney’s view of what is in child’s “best interest” Same duties of confidentiality, zealous advocacy, and communication as adult clients Explaining all aspects of the case thoroughly
Aimee Maldonado, Supervising Attorney, Catholic Charities Brian Schaeffer, Director, YMCA Immigration Legal Services Alissa Rubin Gomez, Executive Director, Houston Volunteer Lawyers Professor Janet Beck UH Law Center, Immigration Law Clinic Anne Chandler, Houston Director, Tahirih Justice Center Join the Conversation on Twitter #KidsWhoCrossed
Vidal Martinez, Martinez Partners, LLP Join the Conversation on Twitter #KidsWhoCrossed
John Odam, Assistant County Attorney, Managing Attorney, Protective Services Practice Group Join the Conversation on Twitter #KidsWhoCrossed